David McCullagh – Costello and the Rule of Law (Ep 2/6)

The Minister (Justice Minster P.J. Ruttledge) gave extracts from various laws on the Continent, but he carefully refrained from drawing attention to the fact that the Blackshirts were victorious in Italy and that the Hitler Shirts were victorious in Germany, as assuredly, in spite of this Bill and in spite of the Public Safety Act, the Blueshirts will be victorious in the Irish Free State.

John A. Costello (1934)

David McCullagh is a journalist and author. A graduate of University College Dublin where he studied history and politics – McCullagh has a PhD in politics – he was RTÉ News Political Correspondent for 12 years before being appointed presenter of Prime Time in 2013. McCullagh has written two books – The Reluctant Taoiseach, a biography of John A. Costello (Gill and MacMillan, 2010) and A Makeshift Majority, a history of the first Inter-Party Government (IPA, 1998) and he recently returned to UCD to record a 6-part podcast series on the life and career of John A. Costello specially for History Hub.

The series will be released episodically over the coming months. Subscribe to our podcast series on iTunes or become a follower of our Soundcloud page to receive new episodes as they are made available.

Episode 2 – Costello and the Rule of Law (Ep 2/6)

Transcript: Costello and the Rule of Law (Ep 2/6)

Before he became Taoiseach, John A. Costello’s political career was mainly notable for two things: his role as Attorney General in introducing emergency legislation to tackle the IRA, and a notorious speech in the Dáil defending the Blueshirts and comparing them to the Nazis and Italian fascists.

This reputation was highly ironic, because Costello deeply regretted the use of emergency legislation, and was a convinced democrat who had little enough to do with the Blueshirts.

Costello was appointed Attorney General in January 1926. He was young for the job – just 35 – and had only 12 years practice behind him, but W.T. Cosgrave came to rely on him and his advice over the following six years.

He played a supporting role in one of the real success stories of that Government – the pushing out of the boundaries of Ireland’s status within the Commonwealth. The Irish, with some support from South Africa and Canada, gradually chipped away at the restrictions on their sovereignty imposed by their status as Dominions.

This culminated in the Statute of Westminster in 1931, which recognized the legislative independence of the Dominions – and, incidentally, laid the groundwork for Eamon de Valera’s later moves to demolish the Treaty settlement.

The other major aspect of Costello’s work as Attorney General was the emergency legislation used against the IRA. Emergency measures were introduced three times during his term of office, in 1926, in 1927 after the assassination of Kevin O’Higgins, and again in 1931.

Costello did not like these measures – he later described himself as having “the misfortune” to prepare them, and claimed his distaste for them was one of the reasons for declaring the Republic, as a way of ‘taking the gun out of Irish politics’.

Curiously, one of the targets of the legislation, Seán MacBride, later praised Costello, who he believed insisted on their passage ‘in order to avoid the rule of law from being disregarded completely’. In other words, if the Government and the Gardaí were going to break the ordinary law anyway, it was better to suspend the operation of that law rather than ignore it.

The introduction of emergency powers after the assassination of Kevin O’Higgins in 1927 was hardly surprising. What was surprising is how little the legislation was actually used. While Costello’s legislation gave the Government the power to try suspects by Courts-martial, it never actually did.

In May 1928, Justice Minister James FitzGerald-Kenny told the Dáil that while four people had been arrested under the terms of the act, nobody had ever been convicted under it. The Act was repealed at the end of that year, much to the annoyance of Garda Commissioner Eoin O’Duffy.

O’Duffy predicted that removing the legislation would encourage the IRA, and in the following years there was an upturn in republican violence, including the murder of a Garda Superintendent in March 1931.

The following October, the Government brought in more special powers, in the shape of an amendment to the Constitution known as Article 2A. This provided for a Special Powers Tribunal made up of army officers to try certain offences; gave more powers to the Gardai; and outlawed associations aiming to overthrow the Government by force.

Ironically, the Government didn’t accept one of O’Duffy’s other suggestions – a ban on the wearing of uniforms indicating membership of an unlawful association. Within a couple of years, the General was to be very glad that particular provision wasn’t on the Statute books.

The new legislation helped to reduce political violence in the run-up to the 1932 general election, but again Costello was clear that he didn’t like these special powers. He said the powers were a deterrent – and that every person who went to prison under Article 2A was a monument to its failure.

When Fianna Fáil took office, the Tribunals were suspended and the 17 men imprisoned by them were pardoned. But de Valera didn’t remove Article 2A from the Constitution, and the Tribunals were back in business from the middle of 1933, dealing first with the Blueshirts, and later with the IRA again.

And when Governments wanted to bring in special powers, they looked at Article 2A as a template. Debating the 1939 Offences against the State Bill, Costello accepted it was the direct descendent of Article 2A, but said that that measure had only been brought in as a last resort, because of a breakdown in the administration of justice, and said powers like these should not be used to deal with less serious difficulties.

Later he was critical of the way Tribunals set up under the Act operated. After one such criticism in the Dáil, a Department of Justice official wrote a bitter memo, claiming that Costello appeared to be irritated by anything which emphasized that the important question in a criminal trial is whether the accused is guilty or not. “That sound doctrine,” the memo said, “is not agreeable to lawyers who, like Deputy Costello, are making a lot of money by getting convictions quashed on purely technical grounds… It is a serious misfortune that the main speaker of the Opposition on such matters should be a lawyer whose professional interests are so frequently at variance with the public interest.”

Ouch!

However, while the Justice official may have had a point, Costello was sincerely committed to the rule of law, and to ending republican disaffection from the State. As I said earlier, ‘taking the gun out of Irish politics’ was one of the reasons for the Declaration of the Republic in 1948 – an aim that failed.

During his second term as Taoiseach, Costello had to deal with the IRA’s Border Campaign, which began in 1956. He was determined to take action against the IRA – but to do so using the ordinary criminal code rather than using special powers and internment.

Whether this approach would have been successful is doubtful – in any case Sean MacBride and Clann na Poblachta withdrew their support from the Government once it started to take action against the IRA. When de Valera returned to power he introduced internment and the Border Campaign gradually fizzled out.

Costello continued to voice his disapproval of heavy handed Government attacks on civil liberties. His final contributions in the Dáil in 1969 were on a controversial Criminal Justice Bill. He warned against infringing the right to free speech and assembly, saying this should only be done if there was an imperative public interest. The last words he spoke in Leinster House were a warning that giving Gardaí extra powers would bring the force into disrepute, because the people wouldn’t trust them and would be afraid of them.

But it was a much earlier Dáil speech which gave many people a very different idea about what Costello stood for. The speech, in February 1934, was Costello’s most famous, which was unfortunate, as it was probably also his most ill-advised.

The background was the Government’s effort to control the Blueshirts, a quasi-fascist organization which was one of the constituent parts of the Fine Gael party.

The Blueshirts grew out of the Army Comrades Association, made up of former members of the National Army, who provided security at election meetings for Cumann na nGaedheal, the pro-Treaty party led by W.T. Cosgrave.

During the 1932 general election, the IRA attempted to disrupt Cosgrave’s meetings, and the Blueshirts evolved as a defence organisation, adopting the distinctive shirt as a way of identifying themselves in crowds.

Later, some of the leadership of the Blueshirts, including General Eoin O’Duffy, the Garda Commissioner sacked by de Valera, dabbled with fascist ideology, and while they seem in retrospect as a rather comic opera version of their continental cousins, they didn’t appear quite so amusing at the time.

De Valera reinstated military tribunals to deal with them, and as the Economic War brought hardship to large cattle farmers cut off from their British markets, there was serious violence, and rumours of planned coups.

Faced with increasing Government oppression, the Blueshirts came together with Cumann na nGaedheal and the Centre Party to form the new Fine Gael party, led by O’Duffy even though he didn’t have a seat in the Dáil.

Costello, while not a Blueshirt himself, was a prominent defender of O’Duffy and his colleagues in the courts.

And in early 1934, when the Government introduced legislation to ban the wearing of the blue shirt, he virulently defended the Blueshirts in the Dáil. Fianna Fáil’s Justice Minster P.J. Ruttledge had outlined similar measures in other countries, to which Costello replied:

“The Minister gave extracts from various laws on the Continent, but he carefully refrained from drawing attention to the fact that the Blackshirts were victorious in Italy and that the Hitler Shirts were victorious in Germany, as assuredly, in spite of this Bill and in spite of the Public Safety Act, the Blueshirts will be victorious in the Irish Free State.”

Costello later dismissed criticism of this speech, claiming that he simply meant that the Blueshirts would ensure free speech; and that the true nature of Hitler and Mussolini was not then widely known.

But the fact is, even if Costello could be excused for not forecasting the Second World War or the Holocaust, he should have known even then that the dictators and their supporters were deeply unsavoury. For instance, on the very day he made his speech, the Irish Independent reported Nazi attacks on the Cardinal of Munich, making the thuggery at the heart of Hitler’s movement perfectly plain to anyone who wanted to see.

It was a very foolish speech to make, and it was unfortunate for his reputation that he made it. But it was typical of John A. Costello – while he was certainly a democrat at heart, he was also prone to making strongly worded and incautious speeches, a trait that would become even more of a problem when he became Taoiseach.